Accommodating capacity-restoring interventions in the Mental Capacity Act 2005

This article argues that the lack of an explicit and systematic role for the restoration of P’s decision-making capacity within the Mental Capacity Act 2005 (MCA) framework is problematic, in particular in light of the significant developments being made in neurointerventions that have the potential to restore, or at least repair, the abilities required to demonstrate decision-making capacity under the MCA. The article first demonstrates where the challenge lies, through an examination of the current legal framework. It then explores three points in the MCA framework at which the consideration of whether capacity can and should be restored might be incorporated, including the ‘practicable steps’ requirement, the best interests assessment, and a potential additional stage between the assessment of capacity and the best interests assessment. It is argued that there are significant challenges with all three of these possibilities, and some directions for the way forward are suggested.